Fordham Law Review
Volume 30 | Issue 1
Article 4
1961
A Consideration of the History and Present Status
of Section 2 of the Fourteenth Amendment
George David Zuckerman
Recommended Citation
George David Zuckerman, A Consideration of the History and Present Status of Section 2 of the Fourteenth Amendment, 30 Fordham L.
Rev. 93 (1961).
Available at: http://ir.lawnet.fordham.edu/flr/vol30/iss1/4
This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for
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A CONSIDERATION OF THE HISTORY AND
PRESENT STATUS OF SECTION 2 OF THE
FOURTEENTH AMENDMENT
GEORGE DAVID ZUCKERMAN*
Representatives shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each State, excluding
Indians not taxed. But vwhen the right to vote at any election for the choice of
electors for President and Vice President of the United States, Representatives in
Congress, the Executive and Judicial officers of a State, or the members of the
Legislature thereof, is denied to any of the male inhabitants of such State, being
twenty-one years of age, and citizens of the United States, or in any vay abridged,
except for participation in rebellion, or other crime, the basis of reprezentation
therein shall be reduced in the proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty-one years of age in such
State.'
S ECTION
2 of the fourteenth amendment- has been much of an
enigma in American constitutional history. Thaddeus Stevens, in
reporting the fourteenth amendment to the House of Representatives,
referred to the second section as "the most important in the article." 3
It was regarded by Representative George Miller of Pennsylvania as
the "cornerstone of the stability of our government."" The apportionment
problem that was resolved by section 2 was the first feature of the
* Mlember of the New York Bar.
1. U.S. Const. amend. XIV, § 2.
2. The Eighty-fifth Congress was successful in enacting the first major civil rights
legislation in more than eight decades. Civil Rights Act of 1957, 71 Stat. 634, as amended, 5
U.S.C. § 295-1 (195S), 28 U.S.C. §§ 1343, 1S61 (195S), 42 UT.C. §§ 1971, 1975, 1975a-e, 195
(1958) (Supp. II, 1959-1960). It was also responsible for encouraging greater crutiny
of constitutional provisions in a search for additional means of protecting the rlghts and
privileges of American citizens. As a result of this search a bill was introducA by
Senator lcNamara of Michigan calling for the creation of a joint congreccional committee
to implement section 2 of the fourteenth amendment by providing for a reduction in
congressional representation from states where the right to vote is dcnied or abridged.
The bill was first introduced in the form of an amendment to H.R. 6127, Sth Con,-,
Ist Sess. (1957), which later became the Civil Rights Act of 1957. See 103 Cong. Rca.
12519 (1957). It was defeated, 103 Cong. Rec. 13460 (1957), but later introduced in the
same session as a separate bill, S. 2709, SSth Cong., Ist Sess. (1957). See 103 Con-. Rcc.
13703 (1957). Senator McNamara's bill v.as again introduced in the Eighty- ixth Conrcc.
S. 1034, 36th Cong., 1st Sess. (1959), and notwithstanding that it w.as never enacted it
has been of great value in calling attention to the language of the second section of the
fourteenth amendment. Although the bill wxas not reintroduced in the Eighty-evcnth Congress, Senator McNamara has indicated that he "may very well introduce it again as a bill
or as an amendment at such time as it appears the Senate vll hea working on civa rights
legislation." Letter From Senator McNamara to 'Fordham Law Review, Sept. 11, V161.
3. Cong. Globe, 39th Cong., 1st Sess. 2459 (1365-1366).
4. Id. at 2510.
FORDHAM LAW REVIEW
[Vol. 30
fourteenth amendment to be discussed by Congress and the debate on
the problem extended over seven months. In the battle for ratification,
the second section was hailed as the most important part of the fourteenth amendment by the Washington Chronicle, the leading Radical
organ of the time.' However, despite these declarations concerning the
significance of section 2, and the extensive debate preceding"its adoption,
the nine decades that have passed since its adoption have failed to
produce a successful attempt to enforce its provisions.
It is the object of this article to attempt to shed additional light on
section 2 by examining the conditions which led to its inclusion in the
fourteenth amendment, the aspirations of its framers, the meanings that
were attributed to its terms, and the manner in which it was expected
to operate. The article will also consider the attempts of Congress to
enforce section 2 and the reasons for the failures. Finally, inquiry will
be made into the present status of section 2 and of possible means of its
implementation.
I. THE ADOPTION OF SECTION 2 OF THE FOURTEENTH AMENDMENT
The Thirty-ninth Congress which assembled in December 1865 was
well aware that a change in the method of apportioning representatives
to Congress among the several states would be one of the major problems
facing it. The thirteenth amendment, which was to become effective on
December 18, 1865, would alter the apportionment provisions of article
I, section 2, which had included only three-fifths of the slaves in determining the basis for representation. Now with the abolition of slavery,
forty per cent of the colored population of the South would be added to
that region's basis of representation. Under the "three-fifths provision,"
the fifteen slave states in 1860 had eighteen Representatives based upon
their colored population. With Emancipation, the former slave states
would gain an additional twelve Representatives. The vision of thirty
Representatives from the South, based upon a Negro population which
was totally denied the right to vote, did not rest well with the majority
of members of the Thirty-ninth Congress. The Representatives of the
former states of the Confederacy had not yet regained admission to
Congress, but it was evident that the day of their readmission could not
be indefinitely postponed. In the meantime, the large Republican
majority in both houses of Congress presented the opportunity to curtail
the political power of the South before its return to Congress by constitutional amendments designed to reduce Southern representation, and
5. The importance of section 2 of the fourteenth amendment was stressed In every
issue of the Washington Chronicle from Sept. 20 to Oct. 10, 1866. See Flack, The Adoption of the Fourteenth Amendment 143-44 (1908).
THE FOURTEENTH AMENDMENT
1961]
to encourage the enfranchisement of Negroes in the expectation that they
would swell the ranks of the Republican Party.
Action to change the method of apportionment was not long awaited.
On the second day of the session, bills were introduced by Representatives Robert C. Schenck" of Ohio, and by Thaddeus Stevens7 and John
M. Broomall' of Pennsylvania, each of which sought to apportion Representatives according to the number of legal voters in the several states.
The Stevens bill included a provision calling for "a true census of the legal
voters" to be taken concurrently with the regular census. 9
However, the idea of basing representation upon the number of legal
voters soon encountered strong opposition from New England's Representatives. New England, which restricted aliens from voting, imposed
educational requirements in granting suffrage, and had a disproportionately large number of women (who were universally excluded from
voting at the time) due to an extensive emigration of her males to the
West, felt that it had much to lose from a voters' basis of representation.
Representative James G. Blaine of MIaine expressed his section's opposition to the propositions making suffrage instead of population the basis
of representation." He acknowledged that the goal of those bills was
to deprive the rebellious states of a large representation in the House
based on their colored population so long as that population was denied
political rights by the legislatures of those states. But he said that basing
representation on voters would have evil results in the loyal states where
the ratio of voters to population varied from a minimum of nineteen per
cent to a maximum of fifty-eight per cent. California, with a population
of 358,110 in 1860, had 207,000 voters, while Vermont, with 314,369
people, had only 87,000 voters. Thus, Blaine argued that while California
and Vermont each had three Representatives, if representation were based
on voters, California would have eight Representatives to Vermont's
three. Similarly, if Massachusetts were to keep its ten Representatives,
on a voters' basis Indiana would be entitled to an increase in Representatives from eleven to fifteen. Blaine concluded that a voters' basis would
cause conservative restrictions on voting, such as reading and writing,
to be eliminated, invite foreigners to vote on mere preliminary declarations of intention, and tend to cheapen suffrage everywhere. He said
that the "great end of depriving the South of the representation which is
based on the colored population until that population is enfranchised,""
6.
Cong. Globe, 39th Cong., 1st Sess. 9 (1S65-1266).
7.
3.
9.
10.
Id. at 10.
Ibid.
Ibid.
Id. at 141.
11.
Ibid.
FORDHAM LAW REVIEW
[Vol. 30
could be accomplished without causing loyal states to suffer "offensive
inequalities" by his bill, which read:
Representatives and direct taxes shall be apportioned among the several States
which may be included within this Union, according to their respective numbers,
which shall be determined by... (taking the whole number of persons except those
to whom civil or political rights or privileges are denied or abridged by the constitutionz or laws of any State on accoutnt of race or color).12
While the preliminary debates on apportionment were taking place
on the floor of Congress, the Joint Committee of Fifteen on Reconstruction had begun its deliberations. This select committee of nine Representatives and six Senators (twelve of the fifteen members being Republicans) having the task of reporting legislation on reconstruction to
Congress soon turned to the problem of apportionment. As was the
case in the House, the first proposition on apportionment which the
committee considered was a resolution by Thaddeus Stevens proposing a
constitutional amendment basing representation on legal voters.' a The
resolution was defeated with eight members of the committee-including
every member from New England-voting against it.' 4 A subcommittee
composed of Senators Fessenden and Howard, and Representatives
Bingham, Conkling, and Stevens was then appointed to handle all propositions concerning representation, and submitted the following resolution:
Representatives and direct taxes shall be apportioned among the several States
which may be included within this Union according to their respective number,
counting the whole number of citizens in the United States in each State; provided
that, whenever the elective franchise shall be denied or abridged in any State on
account of race, creed or color, all persons of such race, creed or color, shall be
excluded from the basis of representation. 15
A proposal by Representative Conkling of New York, to strike out the
words "citizens of the United States in each State" and to insert instead
"persons in each state, excluding Indians not taxed" was approved by
the committee.' 6 Conkling, in explaining why "persons" rather than
"citizens" was used as a basis for representation, said persons had always
constituted the basis in the Constitution, and that since "many of the
large States now hold their representation in part by reason of their
aliens.
12.
.
.
,"
the amendment would have to be acceptable to the legisla-
Ibid.
13. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction 41
(1914). This work contains the original journal of the committee to which citations to
committee
14. Id.
15. Id.
16. Id.
proceedings will be made.
at 45.
at 50-51.
at 51.
1961]
THE FOURTEENTH AMENDMENT
tures and people of those states to be ratified.' 7 The latter seems to have
been the real reason for the change. The exclusion of "Indians not taxed"
from the basis of representation was defended by Stevens, who asserted
it was favored by the committee because the Constitution (article I,
section 2) so excluded them, and "because they are a tribal race, have
s
their own separate governments, and, as a general rule, are not citizens."'
After the word "creed" was eliminated from the bill," and the committee by a twelve to two vote removed the words "and direct taxes"
from the measure in an effort to divorce the question of taxation from
the apportionment controversy, - the amendment was approved by the
Reconstruction Committee and forwarded to the House.
On the House floor, Frederick Pike, Republican from Maine, probably
typified the majority sentiment when he declared that the object of the
apportionment bill should be two-fold: "One is to lessen the political
power of the South; the other is to protect the colored population of the
country."'" But even the members of the House who agreed with these
objectives, differed as to how they could be accomplished.
Roscoe Conling, of New York, spoke in favor of the amendment
proposed by the Reconstruction Committee, declaring that it would
leave control of the elective franchise in the states and permit qualifications of voters as to intelligence and property. Only if race or color were
used as a qualification for voting would the states suffer a loss in representation. Conkling predicted the amendment would cause the free states
to gain twelve Representatives and the former slave states to lose twelve.
However, Republicans were heard in opposition to the measure.
Samuel Shellabarger of Ohio felt the bill seemed to authorize states to
disfranchise races if they so desired, which he maintained was contrary
to the constitutional requirement guaranteeing states a republican form
of government.2 3 Thomas Jenckes of Rhode Island was perhaps on
sounder ground when he objected that Southern States by property
qualifications could easily get around the Reconstruction Committee's
bill, though not depriving Negroes of the right to vote because of race
or color. He asserted that if South Carolina adopted a requirement that
voters own fifty acres of land, the Negroes would be just as easily disfranchised as by a law based on race or color. 2 The objection that property
17.
18.
Cong. Globe, 39th Cong., 1st Sess. 359 (1565-1866).
Id. at 376.
19. Kendrick, The Journal of the Joint Committee of Fiftcn on Rccomtruction 52
(1914).
20.
21.
22.
23.
24.
Id. at
Cong.
Id. at
Id. at
Id. at
58.
Globe, 39th Cong., 1st Sess. 407 (1865-1566).
357-53.
35S.
376.
FORDHAM LAW REVIEW
[ Vol. 30
qualifications were not covered by the bill was also raised by Thomas
Eliot of Massachusetts," and by Jehu Baker of Illinois, who declared
that "no State should reserve in her basis of representation persons disfranchised and not represented, no matter on what ground she so
excludes them."2 6
The desire to go beyond "race or color" in extending the grounds for
exclusion from the basis of representation was strong among the Midwestern Representatives. William Lawrence of Ohio proposed an amendment basing representation on the number of adult male voters.2" In his
words:
If any class is unfit to be an element of political strength, it is unjust to clothe
a favored class with political power on its behalf. . . . With what grace can we
say to the South "You shall have no representation for freedmen not enfranchised,"
upon representation for aliens and women and children not
while we insist
28
enfranchised?
Though no action was taken on the Lawrence proposal, a similar amendment introduced by Representative Schenck of Ohio was submitted to a
vote. The Schenck amendment apportioned Representatives according to
the number of adult male citizens in each state qualified to vote for the
most numerous branch of the state legislature. Congress was to provide
for an enumeration of such voters to be made separately at the time of
the general census, taken every ten years.2 9 On January 31, 1866, the
Schenck bill came up for a vote in the House but was defeated 131 to
29.30 New England, opposed to any bill which would exclude aliens and
females from the basis of representation, voted solidly against the bill,
and numerous other Representatives who had indicated sympathy with the
Schenck proposal voted against it, probably out of the fear that it could
never be ratified in the face of New England's opposition.
Stevens then submitted the Reconstruction Committee's amendment
to a vote. After the committee's alterations the amendment read:
Representatives shall be apportioned among the several States which may be included within this Union according to their respective number, counting the whole
number of persons in each State, excluding Indians not taxed: Provided, That
whenever the elective franchise shall be denied or abridged in any State on account
of race or color, all persons therein of such race or color shall be excluded from
the basis of representation.
It is important to note that the effect of this amendment would be to
25. Id. at 406.
26. Id. at 385.
27. Id. at 403.
28. Id. at 404, 405.
29. Id. at 407, 535.
30. Id. at 538.
19611
THE FOURTEENTH AMENDMENT
exclude from a state's basis of representation all members of a class
whenever one such member was disfranchised because of race or color.
By a vote of 120 to 46 it was approved by the House and sent on to the
Senate.3 1
On February 5, 1866, the Senate undertook discussion of the amendment. Senator Fessenden of laine, the chairman of the Reconstruction
Committee, declared that the amendment had the great excellence of
accomplishing "indirectly what we may not have the power to accomplish
directly.... If we cannot put into the Constitution, owing to existing
prejudices and existing institutions, an entire exclusion of all class distinctions, the next question is, can we accomplish that work in any other
way?" 2 The problem that Fessenden was referring to was that of the
recent failures in Northern States to enact legislation directly guaranteeing Negro suffrage. Within the past decade, New York, Connecticut,
Ohio, Minnesota, Wisconsin, and Kansas had voted against propositions
granting suffrage to Negroes. Fessenden reasoned that since a direct
attempt to regulate state suffrage might fail of ratification, the indirect
manner of the Reconstruction Committee's measure which left the
control of suffrage in the hands of the state, subject only to a possible
loss of congressional representation of a class which the state felt was
not fit to vote, would be the best solution.
The Democrats were vigorous in attacking the amendment as partial
and sectional. Reverdy Johnson of Maryland said the amendment was
designed to apply only in the Southern States with their large colored
population, leaving the Northern States free to disfranchise Negroes
without adverse results because of their small Negro population. Senator Hendricks of Indiana declared that some fifteen to twenty Representatives in the North, who were based upon a population denied the right
to vote for reasons other than race or color, wouldn't be affected by the
Reconstruction Committee's amendment. He attacked the bill as a
further attempt to make the manufacturing and commercial interests of
New England dominant in Congress?'
In addition to the Democrats, opposition to the amendment came
from quite a different corner-that of the more militant Republicans
who felt the measure did not go far enough in preventing Negro disfranchisement. Charles Sumner called the amendment "a compromise
of human rights." He appealed for universal suffrage "subject only to
such regulations as the safety of society may require ...," such as age,
31.
32.
33.
34.
Ibid.
Id. at 705.
Id. at 766.
Id. at 377-73.
FORDHAM LAW REVIEW
[Vol. 30
character, registration and residence.3" Senator Yates of Illinois attacked
the amendment as giving constitutional sanction to the "rebellious States
to exclude from the right of voting and to disfranchise entirely the freedmen."
36
Several Senators introduced substitute amendments of their own on
the apportionment problem. James R. Doolittle, a Democrat from
Wisconsin, proposed an amendment basing representation upon the
number of voters in each state,3 7 while Senator Henderson of Missouri
introduced an amendment that "no state, in prescribing the qualifications requisite for electors therein, shall discriminate against any person
on account of color or race."," Senator Wilson of Massachusetts said
the results of Northern elections in the last six months indicated the Henderson proposal could not be passed by the states, and he attacked the
Doolittle amendment basing representation upon voters as one that would
cause the loyal states to lose fifteen representatives. Wilson stated that
in 1860 there were 3,856,628 unnaturalized persons of foreign birth in
loyal states, but only 233,651 in the rebel states. Since non-citizens were
disfranchised, Wilson estimated that basing representation on legal votes
would cause Massachusetts to lose one or perhaps two Representatives,
Pennsylvania two, and New York as many as four.3 9
While debate was waged on the Henderson and Doolittle amendments,
yet another proposal was made as Daniel Clark of New Hampshire
offered an amendment basing representation upon the number of male
citizens twenty-one and over qualified to vote for the most numerous
branch of their state legislature. 40 This was similar to the Schenck
proposal which had been defeated in the House.4 It had the facility of
basing representation upon the number of people who by section 2 of
article I were qualified to be electors for the House of Representatives.
Though the Clark bill won the support of Senator Trumbull of Illinois,4"
it failed to obtain sufficient support from other Senators and was withdrawn.
On March 9, 1866, after the debate on the question of apportionment
had entered its fifth week in the Senate, the joint resolution of the Reconstruction Committee was voted upon. The amendment received
twenty-five votes in its favor, but twenty-two senators voted against it
35.
36.
37.
38.
39.
40.
41.
42.
Id. at 673.
Id. at 1256.
Id. at 1232.
Id. at 1283.
Id. at 1256.
Id. at 1284.
Note 30 supra and accompanying text.
Cong. Globe, 39th Cong., 1st Sess. 1284 (1865-1866).
1961]
THE FOURTEENTH AMEND.IIENT
and three were absent.4 3 The measure thus failed to win the two-thirds
approval required for constitutional amendments. Not only Democrats,
but such Republicans as Sumner of Massachusetts, Cowan of Pennsylvania, Yates of Illinois, Pomeroy and Lane of Kansas, Brown of Missouri,
and Stewart of Nevada, each of whom had supported more direct guarantees of Negro suffrage, voted against it. The problem of apportionment
was thus returned to the Reconstruction Committee for future action.
In April, the Reconstruction Committee turned to the drafting of a
new amendment concerning apportionment. But this time the committee
had the lessons of three months of congressional debate to aid it. It still
hoped to produce an amendment which would encourage the extension
of suffrage to Negroes without directly regulating suffrage within the
states. Penalizing states disfranchising Negroes through a reduction in
congressional representation was still viewed as the most desirable method
of achieving this result. But the debates in Congress had shown that
qualifications based on race or color were not the only way Negroes
could be disfranchised; property or educational qualifications might also
operate to achieve the same result. Thus the conmmittee searched for
language extending beyond qualifications based on race or color in
determining the basis of representation. The committee searched also
for language which, in form at least, would cbe applicable to all states
and avoid charges of sectionalism and which would be strong enough to
satisfy the radicals who claimed that the previous amendment sanctioned
disfranchisement based on race or color. But there were political pressures to consider. To be capable of passage, the amendment could not
deprive the North of its representation based on aliens, nor could the
New England States be made to suffer because of their greater proportion
of female inhabitants. There was also a special problem in Missouri,
where large numbers of the population had been disfranchised for participating in the rebellion. To placate Missouri, the disfranchised rebels
must not cost that state a loss in congressional representation. The product of these considerations was the proposal adopted by the Reconstruction Committee on April 2S1 and presented to Congress as section 2 of
the proposed fourteenth amendment:
Representatives shall be apportioned among the several States which may be
included within this Union, according to their respective numbers, counting the
whole number of persons in each State, excluding Indians not taxed. But whenever, in any State, the elective franchise shall be denied to any portion of its male
citizens not less than twenty-one years of age, or in any way abridged except for
participation in rebellion or other crime, the basis of representation in such State
43. Id. at 1289.
44. Kendrick, The Journal of the Joint Committee of Fiftemn on Reconstruction 102
(1914).
FORDHAM LAW REVIEW
[Vol. 30
shall be reduced in the proportion which the number of such male citizens shall
4
bear to the whole number of male citizens not less than twenty-one years of age. 0
Thaddeus Stevens began discussion of the proposed fourteenth amendment in the House on May 8. He regarded the second section as "the
most important in the article." In his words: "The effect of this provision will be either to compel the States to grant universal suffrage or
so to shear them of their power as to keep them forever in a hopeless
He said the rebel states would
minority in the national Government .... ,,4"
have but thirty-seven Representatives if they did not enfranchise the
freedmen. "Southern pride would not long brook a hopeless minority.
True it will take two, three, possibly five years before they conquer their
prejudices sufficiently to allow their late slaves to become their equals
at the polls. '41 But Stevens said that the delay would not be injurious
because in the meantime the freedmen would become more enlightened
and prepared for suffrage. The one feature he disliked about section 2
was that it allowed states to discriminate among the same class and yet
receive proportionate credit in representation. He would have preferred
that if one member of a race were excluded, the state should forfeit the
right to have any of them represented, as had been provided in the earlier
apportionment amendment that passed the House 48 but died in the
Senate.49 However, Stevens acknowledged that the present amendment
was "a short step forward" in the right direction.Y0
Henry J. Raymond of New York supported section 2 as it now stood
-based on proportionate representation-rather than on the exclusion
of a whole class from the basis of representation because one member
was denied the right to vote. The latter method, he thought, was so severe
it would discourage any Southern State from gradually extending the
suffrage. 51
William Finck, a Democrat from Ohio, attacked the second section as
a "mere scheme to deny representation to eleven States; to prevent inand to perpetuate the
definitely a complete restoration of the Union
2
power of a sectional and dangerous party.M
Many of the speeches in favor of section 2 tended to confirm the
Democrats' charge that the amendment was only intended to apply to
the South. William D. Kelley of Pennsylvania asked: "Shall the par45.
Cong. Globe, 39th Cong., 1st Sess. 2286 (1865-1866).
46.
Id. at 2459.
47.
48.
49.
50.
Ibid.
Notes 30 & 31 supra and accompanying text.
Note 43 supra and accompanying text.
Cong. Globe, 39th Cong., 1st Sess. 2460 (1865-1866).
51. Id. at 2502.
52. Id. at 2461.
THE FOURTEENTH AMENDMENT
1961]
doned rebels of the South include in the basis of representation four
million people to whom they deny political rights, and to no one of whom
is allowed a vote in the selection of a Representative?"0 3 Ephraim Eckley
of Ohio pointed out that unless the proposed amendment were adopted,
two white rebels in South Carolina would have the political strength of
five white loyalists in Ohio, Pennsylvania or New YorkY-'
Stevens, in concluding debate on the amendment, conceded that section
2 would not be self-executing; that Congress must legislate for the purpose of ascertaining the basis of representation, but that "as soon as it
becomes a law, Congress at the next session will legislate to carry it out
both in reference to the presidential and all other elections as we have the
right to do."15' On May 10, section 2, as part of the proposed fourteenth
amendment, was approved by a 128 to 37 vote in the House."
The Senate began its deliberations on the amendment on Mlay 23. Due
to the illness of Senator Fessenden, the chairman of the Reconstruction
Committee, Jacob M. Howard of Michigan took the lead in pressing for
its passage. In discussing section 2, Howard adnitted that he would
have preferred securing suffrage for the colored race, at least to some
extent. But he said the real question was how to put through a measure
that three-fourths of the states would accept.17 Howard confessed that
the Reconstruction Committee was of the opinion that three-quarters of
the states could not be induced to vote to grant the right of suffrage in
any degree or under any restriction to the colored race. Thus the second
section left the right of regulating suffrage to the states. But "where a
State excludes any part of its male citizens from the elective franchise, it
shall lose Representatives in proportion to the number so excluded; and
the clause applies not to color or race at all, but simply to the fact of the
indvidual exclusion." ' If the amendment passed, Howard claimed, the
eleven seceded states, if they disfranchised Negroes would lose twenty-four
members in the House according to the census of 1860. Though section 2
was drawn to make it to the political advantage of the former slave states
to enfranchise their Negroes, he said it would apply equally to all the
states of the Union.
Senator Clark of New Hampshire asked Howard whether a state such
as Massachusetts would lose Representatives if it excluded a person from
voting for want of intelligence. Howard replied that it certainly would
53.
54.
55.
56.
57.
58.
Id.
Id.
Id.
Id.
Id.
Id.
at
at
at
at
at
at
246S.
2535.
2544.
2545.
2766-67.
2767.
FORDHIAM LAW REVIEW
[Vol. 30
"no matter what may be the occasion of the restriction. 6' 0 As a member of
the committee which drafted the amendment and a leading spokesman
for its passage, Howard's answer is entitled to considerable weight in
ascertaining the meaning of the amendment. In elaborating on this point,
Howard declared:
No matter what may be the ground of exclusion, whether a want of education, a
want of property, a want of color, or a want of anything else, it is sufficient that
the person is excluded from the category of voters, and the State loses representation in proportion."0
As to the meaning of "abridged" as used in section 2, Howard gave
the example of a state which allowed a person to vote for state officers
but prohibited him from voting for members of Congress. ,That would be
an abridgement and he would be included in the exclusion. 01 Howard
emphasized that section 2 was to apply individually to each and every
person who is denied or abridged the right to vote, and not to the class
to which he might belong.
There were still members from both parties in the Senate who expressed dissatisfaction with the second section. William Stewart, a Republican from Nevada, asked, that if it was an outrage upon human
rights to deny the ballot to blacks, then why license the South to commit
such an outrage for the small compensation of reduced representation. "
Senator Hendricks, a Democrat from Indiana, opposed the partisan
flavor of section 2, which he claimed was designed to strengthen the
radical party by reducing Southern representation while allowing Northern
States to base representation on aliens who were denied the right to vote.
He asserted that section 2 was so involved and difficult that "one needs
to be a mathematician to be sure that he comprehends the full force of
the proposition."6 As a substitute, Hendricks proposed an amendment
which would base representation upon the whole number of persons in
each state, but excluding two-fifths of such persons released from involuntary servitude.64 This would, in essence, restore the former threefifths compromise which Hendricks conceived to be the fair solution
since it would avoid an increase of Representatives in the South caused
by the emancipation of slaves. But the Hendricks proposal was rejected
by the Senate.6
Senator Doolittle of Wisconsin moved to substitute for section 2 an
59.
60.
61.
62.
63.
64.
Ibid.
Ibid.
Ibid.
Id. at 2800.
Id. at 2939.
Id. at 2940.
65. Id. at 2942
THE FOURTEENTH AMENDMENT
1961]
amendment that had been discussed earlier in the session, that of basing
representation upon the adult male electors in each state qualified to vote
for the most numerous branch of the state legislaturecQ A census was
to ascertain the number of eligible voters. Doolittle predicted the measure would cost New"England four Representatives, although the Northwestern States would gain twelve. Only seven Senators supported the
measure,67 and all but one of them were Democrats.
Undaunted, Doolittle then proposed to base representation upon the
c3
number of male citizens over twenty-one in each state qualified to vote.
Senator Sherman, a Republican of great standing from Ohio, announced
he supported this proposition in principle, convinced that it embodied
the true basis of representation and would equalize the political power of
citizens in all states and destroy sectional animosity. He declared that
there was no reason why New England with its preponderance of women,
or New York with its many unnaturalized foreigners, should give their
voters more political power than voters elsewhere. But Sherman announced that he would have to vote against the Doolittle amendment as
he was "bound by the action of his political friends" to do so6
This reference by Senator Sherman to the "action of his political
friends" was an allusion to the results of a Republican caucus. In the
face of extensive debate and numerous substitute proposals to the provisions of the fourteenth amendment, the Republican leadership had
feared that the apportionment amendment might again be scuttled as it
had been earlier in the session. Thus the Republicans who attended the
caucus agreed to be bound by its decision. With one minor change the
caucus approved the language of section 2 as it had been reported by
the Reconstruction Committee. Sherman argued that "there must be at
some point of every controversy of this kind some surrender of individual
opinion. " The use of a party caucus to determine constitutional
questions was bitterly assailed by the Democrats,"1 but it proved successful in uniting the Republicans. Not a single Republican Senator voted
in favor of the second Doolitfle amendment which again went down to
defeat.7 66. Ibid.
67. Id. at 29S6. The seven Senators were: Doolittle of Wkconsin, Covan of Pcnnsyl-ania, Hendricks of Indiana, Johnson of TMaryland, Riddle of Delaware, and Davi3 and
Guthrie of Kentucky.
6S. Cong. Globe, 39th Cong., 1st Sess. 29S6 (1S65-12C6l.
69. Ibid.
70. Ibid.
71. Senator McDougall of California (Democrat) in denouncing the Republican
caucus, declared "I must say it is the first time in the history of this Republic that
legislative matters and great constitutional questions were scttlcd in party caucus." Cong.
Globe, 39th Cong., lst Sess. 3041 (1S65-lS66).
72.
Id. at 2991.
FORDHAM LAW REVIEW
[Vol. 30
The Republican caucus had suggested one change in the wording of
section 2, that of striking out the word "citizens" and inserting after
"male" the words "inhabitants, being citizens of the United States."
Senator Howard, in proposing this change in the Senate, asserted that
its object was to "make section 2 conform to section 1; to make them
harmonize."7 3 Probably the real object of the insertion was the reason
given by Senator Fessenden: "to prevent a State from saying that although a person is a citizen of the United States, he is not a citizen of the
state. 71 4 This amendment was agreed to without a division."6
Before the proposed fourteenth amendment was submitted to a vote,
a final alteration in the language of section 2 developed out of the Senate
debate. Senator Henderson of Missouri referred to municipal elections
in his state, such as those for school directors, in which only property
holders were eligible to vote. Since the exclusion of non-property holders
from local elections was not uncommon throughout the states, Henderson requested a change in the wording of section 2 to limit its effect to
the election of the general officers of the state.", In response to a growing
concern as to the effect of suffrage restrictions in municipal elections on
the basis of congressional representation, Senator George Williams of
Oregon moved to change the words "elective franchise" to read:
But when the right to vote at any election for the choice of electors for President
and Vice President of the United States, Representatives in Congress, the executive
and judicial officers of a State, or members of the Legislature thereof . . . . [thus]
officers for which these people must be allowed to vote
specifying particularly the
77
in order to be counted.
Senator Howard strongly opposed the Williams amendment which he
claimed would greatly increase the difficulty of ascertaining the basis of
representation. The following picture which Howard drew, in describing
what the result of the Williams amendment would be, is particularly
significant in giving us an insight into the manner in which section 2 was
expected to operate.
The census-taker will find it necessary, whenever he makes the count of the inhabitants of the particular State or district where he is acting, to ascertain, as
precisely as he is able, and to note down in his tables the various persons within
the State who are capacitated to vote for any one or all of these five classes of
public officers. . . . No one class of the voters for these several classes of public
officers is to be held as the standard and test for the number of persons in that
State to be included in the count in the formation of the basis of representation.
It appears to me that it introduces a rule which is so uncertain, so difficult of
73.
74.
75.
76.
77.
Id. at 2897.
Ibid.
Ibid.
Id. at 3010-11.
Id. at 3029.
1961]
THE FOURTEENTH AMENDM1ENT
practical application, as not only greatly to increase the expenses of ascertaining
the basis of representation by Congress in procuring the necesary information, but
in many cases the returns must be so inaccurate and unreliable as to be next to
vorthless. 73
To avoid this difficulty, Howard proposed that the right to vote be
tested only as to elections for the most numerous branch of the state
legislature, and thus make the basis of representation conform to the number of people authorized by the Constitution to elect members of Congress. He suggested this would produce a workable and invariable rule,
instead of the variable and shifting qualifications embraced in the
Williams amendment. But minutes later, the Howard proposal was rejected, and the Williams amendment by a thirty-one to eleven vote was
agreed to by the Senate and inserted into section 2.With section 2 in its final form, the fourteenth amendment was voted
upon and approved by a thirty-three to eleven margin in the Senate.P0
The vote was taken on the fourteenth amendment as a whole, because
a separate vote on each section was not permitted. Without any major
discussion of the changes made in section 2, the House on June 13, 1866,
approved the joint resolution calling for the submission of the fourteenth
amendment to the states.s'
II. CONGRESSioNAL ATTEMPTS TO ENFORCE SECTIoN 2 OF THE
FOURTEENTH AMENDMENT
With the ratification of the fourteenth amendment proclaimed on
July 28,
18 6 8
,S2 the way was cleared for congressional implementation
of its provisions. The apportionment provisions of section 2 of the
amendment were obviously not self-executing. If they were to be enforced, it would require additional congressional action.
The Ninth Census and Section 6 of the Apportionment Act
The first action taken to enforce section 2 came on December 19, 1868,
when Senator James Harlan, a Republican from Iowa, offered a resolution directing the Senate judiciary Committee to prepare a bill for the
apportionment of Representatives in compliance with section 2 of the
fourteenth amendment.5 3 The resolution was agreed to by the Senate,
but the short session of Congress terminated before further action on
it occurred.
78. Id. at 303S-39.
79.
Id. at 3041.
So. Id. at 3042.
S1.
32.
Id. at 3149.
15 Stat. 709-11 (186S).
83.
Cong. Globe, 40th Cong., 3rd Sess. 15S (1063-1S69).
FORDHAM LAW REVIEW
[Vol. 30
In the House of Representatives, a serious effort to apply section 2
developed in the proceedings of a select committee appointed to prepare
for the taking of the Ninth Census. Under the chairmanship of James A.
Garfield of Ohio, the committee undertook an investigation of the laws
of each state which operated to exclude citizens from voting for the
class of officers mentioned in section 2. The object of this census committee was first, to ascertain the laws which restricted suffrage, and then
to provide the census takers with this information to assist them in
determining the number of adult male citizens whose right to vote was
denied or abridged. 84
In describing the work of the committee to the House, Garfield provides us with a valuable report on how section 2 was intended to be
implemented in this first significant effort to enforce its provisions.
The census is our only constitutional means of determining the political representative population. The Fourteenth Amendment has made that work a difficult one.
At the time of its adoption it was generally understood that the exclusion applied
only to colored people who should be denied the ballot by the laws of their State.
But the language of the article excludes all who are denied the ballot in any and all
grounds other than the two specified. This has made it necessary to ascertain what
are in fact the grounds of such exclusion, and the Census Committee have compiled
a record of the constitutions and laws of the several States from which exclusion
from the privilege of voting (otherwise than on account of rebellion or other crime)
may be stated in nine general classes as follows:
16 states
1. On account of race or color ....................................
2. On account of residence on lands ceded by the State to the United
2 states
States .......................................................
2 states
On account of residence less than required time in United States ....
On account of residence in State less than required time .......... 36 states
On account of residence in county, city, town, etc. (18 different
37 states
specifications) ................................................
8 states
3. Wanting property qualifications or non-payment of taxes ..........
2 states
4. Wanting literary qualifications ..................................
2 states
5. On account of character or behavior ............................
2 states
6. On account of service in army or navy ..........................
7. On account of pauperism, idiocy, or insanity ..................... 24 states
8. Requiring of certain oaths as prerequisites to voting ................ S states
2 states8o
9. Other causes of exclusion ......................................
After much reflection the committee could devise no better way than to add to
the family schedule a column for recording those who are voters, and another with
the heading copied substantially from the amendment, "citizens of the United States,
being twenty-one years of age, whose right to vote is denied or abridged on other
grounds than rebellion or crime."
It may be objected that this will allow the citizen to be a judge of the law as
84. H.R. Rep. No. 3, 41st Cong., 2d Sess. 52 (1869-1870).
85. Id. at 52-53. Extracts from the state constitutions and laws operating to disfranchise citizens can be found in the House Report. Id. at 71-93.
1961]
THE FOURTEEXTH AMENDMENT
well as the fact, and that it will be difficult to get true and accurate answ~ers. I can
only say this is the best method that has been suggested.S,
The machinery for enforcing section 2 of the fourteenth amendment
was embodied in section 24 of the bill reported out of the Census Committee to provide for the execution of the Ninth Census? This section provided that as soon as the next enumeration of the inhabitants of the
several states was completed and returned to the office of the Department
of the Interior, the Secretary of the Interior was to ascertain the aggregate representative population of the United States by counting the whole
number of persons in each state, excluding Indians not taxed. However,
when the right to vote in any election for the class of offices listed in
section 2 was denied or abridged to any male inhabitant being twenty-one
years of age and a citizen of the United States, except for participation in
rebellion or other crime, the Secretary was to reduce the state's basis of
representation in the proportion which the number of such male citizens
bore to the whole number of male citizens twenty-one years of age in
such state. The Census Committee further provided that in the census
schedules, the family schedule was to contain two columns listing "male
citizens of the United States twenty-one years of age, whose right to vote
is denied or abridged on other grounds than rebellion or other crime," and
"male citizens of the United States twenty-one years of age."' 3
Representative Hoar of Massachusetts objected to section 24, claiming
that it gave the Secretary of the Interior absolute authority to determine
the apportionment of Representatives and division of political power in
the House without the right of appeal. Hoar proposed that the bill be
amended to have the determination of apportionment subject to congressional approval." But Garfield, the sponsor of the bill thought that
it was not open to the objection raised, since the Secretary of the Interior
was to have merely a ministerial duty to perform-the arithmetical task
of ascertaining the ratio of apportionment from the two columns reported
by the census-takers. 0
As the House prepared to vote on section 24 of the Census bill, Garfield announced a change of view and recommended that the section be
deleted. In support of this motion, he declared that it would be wiser to
leave all questions of apportionment out of the present bill and let the
problem be handled in a separate bill regulating the election of members
of Congress. Garfield further pointed out that the fifteenth amendment,
86.
87.
8S.
Id. at 52-53.
Id. at 62-63.
Id. at 66.
89. Cong. Globe, 41st Cong., 2d Sess. 40 (1S69-1S70).
90. Ibid.
FORDHAM LAW REVIEW
[Vol. 30
which was then (December 1869) in the process of being ratified by
the states, would prevent denials of suffrage based on race or color. The
Census Committee had shown that one of the nine categories which
restricted suffrage were laws based on race or color. Sixteen states had
such laws. But if the fifteenth amendment became effective, all laws
disfranchizing citizens on grounds of race or color would be invalid, and
the states possessing such laws would be entitled to an increase in representation. However, if apportionment were adjusted before the fifteenth
amendment prevailed, then all states entitled to an increase under the
amendment would be deprived of such increase during the whole of the
next ten years. Garfield thus appealed for the House to postpone the
question of apportionment until the next session of Congress."' Despite
the demand of John A. Bingham of Ohio that the mandate of section 2
be immediately carried out in the next census,9 2 the motion of Garfield
was accepted by the House9'
In the Senate, a bill was reported by the Committee on the Revision
of Laws directing the Secretary of the Interior "to so change the schedules and blanks to be used in enumerating the inhabitants of the United
States in 1870 as to make the same conform to the Constitution of the
United States."9 4 The object of the bill was to direct the Secretary of the
Interior, in his supervision over the census, to abide by the express provisions of section 2 of the fourteenth amendment in determining the basis
of apportionment. But the view of most Senators was that such a law
was unnecessary; that even without new legislation, the Secretary of the
Interior would be bound by the Constitution to consider the effect of the
fourteenth amendment to guide him in his work. Apparently, the Secretary of the Interior accepted this view, for although the 1870 census was
taken without any statutory changes pertaining to apportionment, the
Secretary directed his assistant marshalls, who were to take the census,
to list in separate tables the number of male citizens of the United States
twenty-one years of age or more, and the number of "male citizens of
the United States of twenty-one and upward whose right to vote is denied
or abridged on other grounds than rebellion or other crime."9
As the second session of the Forty-second Congress assembled on
December 4, 1871, the taking of the Ninth Census had been completed
and Congress turned to the problem of apportioning the membership of
91. Id. at 124.
92. Ibid.
93. Id. at 127.
94. Id. at 1078.
95. For a defense of the Secretary of the Interior's action taken in the absence of
statutory authorization, see Garfield's address in Cong. Globe, 42d Cong., 2d Sess. 82-83
(1871-1872).
1961]
THE FOURTEENTH AMENDMENT
the House in accordance with the results of the census reports. On
December 7, Representative Charles W. Willard of Vermont introduced
a resolution directing the Secretary of the Interior to furnish the House
with the census returns listing the number of inhabitants in each state,
excluding Indians not taxed, the number of male inhabitants in each
state twenty-one years of age or older and citizens of the United States,
and the number of such citizens whose right to vote in any of the elections
described in section 2 of the fourteenth amendment was denied or
abridged except for participation in rebellion or other crimeY0 Since this
was to be the first apportionment since the passage of the fourteenth
amendment, Willard called for the strict enforcement of its provisions.
He declared that the requirement of a poll tax or the exclusion from
suffrage based on non-payment of taxes as existed in Georgia, Nevada,
Massachusetts, Delaware, and Pennsylvania was an abridgment within
the language of section 2. Willard particularly stressed the evils of
property qualifications which he claimed would as effectively exclude
Negroes from voting as exclusions based on race or color. Where the
right to vote was restricted in any state for any cause, save participation
in rebellion or other crime, Willard asked for a corresponding loss in
that state's basis of representation. 7
The Willard resolution was accepted by the House and was answered
by the Secretary of the Interior four days later with the production of the
returns (shown in the first three columns listed in Appendix) requested
in the resolution.S
The trifling number of adult male citizens whose right to vote was
reportedly denied or abridged, made the accuracy and reliability of the
reports extremely doubtful. Indeed, Columbus Delano, the Secretar, of
the Interior, in submitting the reports requested by Congress, attached
the following reservation:
[T]he Department is disposed to give but little crtcdit to the returns made ky
assistant marshals in regard to the denial or abridgement of suffrage. The unfavorable
judgment of the Department in respect to this single class of statistics is formed,
first, from the application of certain statistical tests, and second, from a consideration of the agencies employed, which are not deemed adequate to the
3
determination of the numerous questions of difficulty and nicety vhich are involved.5
The nature of "certain statistical tests" and agencies employed were
not disclosed by the Secretary, but it did not require a great amount of
research to realize that the returns were a far cry from the number of
citizens who actually voted in the several states. The returns showed
96. Cong. Globe, 42d Cong., 2d Seass. 42 (1371-1S72).
97. Id. at 64-65.
9S. Id. at 66.
99. Ibid.
FORDHAM LAW REVIEW
[Vol. 30
that in all Southern States, except Texas, the number of adult male
citizens who were disfranchised amounted to less than 0.5 per cent. The
largest showing of disfranchisement was 6.4 per cent of the adult male
citizens occurring in Rhode Island, which can probably be attributed to
that state's requirement that electors possess at least 134 dollars worth
of realty. 00
Representative Ulysses Mercur of Pennsylvania, later the Chief Justice of his state, attacked the census report as "utterly inaccurate," unreliable, and as having been undertaken without any law, statute, or
act of Congress to guide it. He felt that the fault lay with Congress which
had not yet passed any law to enforce section 2 and to give practical
effect to its terms. He condemned the fact that the assistant assessors
who prepared the reports were judges both of law and of fact. Instead
of the arbitrary manner in which the reports on disfranchisement had
been assembled, Mercur offered the following suggestion:
To arrive at an intelligent result, a blank form ought to have been prepared,
containing numerous subdivisions showing (if any man said he was disfranchised)
the reason or ground upon which he said his disfranchisement was based. The
facts should have been reported here, and then Congress would have determined
whether those facts brought the individual within this clause. 10'
Representative Garfield defended the application of the census reports
on the number of disfranchised citizens, asserting that the Secretary of
the Interior was bound by the Constitution to adopt population schedules
conforming to the language of section 2. Though admitting that the
census figures were imperfect, Garfield declared that such figures formed
the only basis of apportionment; that if Congress is to obey the fourteenth amendment, it must "take the results as they
come and make them
102
the basis of apportionment of representation.'
Although the number of disfranchised citizens was small, according to
Garfield's calculations, it did threaten to cost both Rhode Island and
Arkansas one representative if strictly enforced.' This was the result
of the application of the "major fractions"' 4 method of apportionment
100. R.I. Const. art. II, § 11 (1843).
101. Cong. Globe, 42d Cong., 2d Sess. 79 (1871-1872).
102. Id. at 83.
103. Ibid. See Appendix, p. 136 infra.
104. Under this system, the number of Representatives apportioned to each state was
determined by taking the total number of Representatives in Congress and dividing that
number into the total representative population of all the states. The result produced a
ratio of one Representative for each 135,458 persons in a state. To provide for a House
with exactly 280 members, a moiety of approximately 78,000 was chosen, meaning that
every state with a fraction above that number, after its representative population was
divided by the ratio of 135,458 to one, was entitled to an additional Representative. (The
moiety chosen under the "major fractions" method is not one-half of the ratio, but Is
19611
THE FOURTEENTH AMENDMENT
to the representative population of each state.1' ' However, few congressmen are mathematicians and the list of disfranchised citizens, even to
representatives like Samuel Shellabarger of Ohio who openly announced
support for the principle embodied in section 2,110 seemed too small and
insignificant to apply in determining the apportionment of representatives. The result of the House debate was that the size of the House was
set at 283 members, and the basis of representation was simply left at
the number of inhabitants, excluding Indians not taxed, in each state."0 7
In the Senate, the House Apportionment bill was accepted both as to
the number of Representatives and as to the method of apportioning them
among the states."" The Senate too, felt that the census figures on disfranchisement of citizens were too insignificant to affect the representaarbitrarily chosen as that fraction which will produce a House with the deircd number
of Representatives.) If the basis of representation was Uased merely on the number of
persons in each state (excluding Indians not taxed), Arkansas with 404,471 p rzons would
have three Representatives and a fraction of 73,097 entitling it to a fourth Reprecntative,
while Rhode Island with 217,353 inhabitants would have one Rcprezentative and a fraction
of S1,895 entitling it to a second Representative. But after deducting from the bas of
representation of each state a proportion equal to the number of dizfranchised adult male
citizens divided by the total number of adult male citizens in the state, Arlansas vith a
resulting loss of 933 in her representative population and Rhode Island with a lo:3 of
14,009, each dropped below the required moiety and thus lost the additional Rcpresentative.
These calculations show that even a small number of difranchiscd citizcrn in a clate
mig ht cost a state a Representative, as would have happened to Arlmnas with only 193
disfranchised citizens, where the resulting loss in a state's representative population places
it just below the established moiety or ratio of apportionment.
105. At the present time Congress uses the "equal proportions" method of apportioning Representatives. 55 Stat. 761 (1941), 2 U.S.C. § 2(b) (1958). This method is dcignCd
to produce the minimum relative difference per share in a Rcprczcntative and in the
average population per district. The operation of the method is described in Qchmeikbicr,
Congressional Apportionment 21-32 (1941). Both the "major fractions" method (uzsA by
Congress until 1940) and the "equal proportions" method ray on priority lits in apportioning Representatives among the states. After assigning one Rcprczentative to each state, the
priority list commences with the fifty-first member of the House which is as igncd to the
state possessing the highest priority number. The priority list numbers are obtaincd by
multiplying the population of each state successively by the zcries of multiplier, usA in
each method for determining the second member, the third member, and so on until the
requisite size of the House is reached. But even with the use of a priority lst, a cmall
reduction in a state's representative population could cost it a Representative. For instance, in 1930, with the size of the House limited to 435 mcmbcrs, the 435th highest
priority number, under the major fractions method, was pos zcd by Lousana with
280,212 which enabled it to have an additional Representative. But had Louisiana's btais
of representation been reduced by as little as 1%, Wiscon-in, with the 436th priority
number of 279,212 would have gained a representative instead of Louisiana.
106. Cong. Globe, 42d Cong., 2d Sess. S1 (1371-1372).
107. Id. at 142-43.
10S. Id. at 679.
FORDHAM LAW REVIEW
[Vol. 30
tion of any state. But there were Senators who expressed displeasure at
seeing the number of disfranchised citizens ignored by Congress in
determining the apportionment of the House. Justin S. Morrill of Vermont argued that it was important that section 2 of the fourteenth amendment must not become a "dead letter." Though Morrill thought the
census figures were unreliable, he said Congress should not go beyond
109
the census report even if the facts might warrant them in so doing.
Morrill's appeal to the Senate to instill some life into section 2 was
not entirely in vain. Although the Senate Judiciary Committee recommended that the Senate accept the House Apportionment bill, it did
propose an amendment to give statutory authorization for the future
enforcement of section 2 of the fourteenth amendment. The proposal of
the Judiciary Committee was contained in the sixth section of the Apportionment Act,"' in the following words:
That should any State, after the passage of this act, deny or abridge the right
of any of the male inhabitants of such State, being twenty-one years of age, and
citizens of the United States, to vote at any election named in the Consitution,
article fourteen, section one [sic], except for participation in the rebellion or other
crime, the number of Representatives apportioned in this act to such State shall be
reduced in the proportion which the number of such male citizens shall have
to the whole number of male citizens twenty-one years of age in such State."'
Apparently, this section was conceived of and drafted with great swiftness by the Judiciary Committee, for its shortcoming as a legislative
implementation of the apportionment provisions of the fourteenth amendment are numerous and grave. The first obvious error in the proposal was
its reference to the elections named in "article fourteen, section one,"
instead of to section 2. While this error could easily be corrected, it
illustrates the careless manner in which the statute was prepared. The
second, and far more serious shortcoming, was the absence in the statute
of any machinery to enforce its provisions. How was the number of
male citizens whose right to vote was denied or abridged to be determined? As an amendment to an apportionment statute, it is quite probable that the Senators conceived the determination of disfranchised
citizens to be left to the census takers. But with the trivial census figures
on disfranchised citizens, taken during the Ninth Census, quite fresh in
the memory of these Senators, the least that could be hoped from the
statute purporting to enforce section 2 would be a detailed plan of instructions to guide the census takers in their enumeration of disfranchised
citizens. Instead, the language of the proposed bill merely states an
objective-the reduction in a state's number of representatives propor109.
110.
111.
Id. at 670.
17 Stat. 28 (1872).
Id. at 610.
19611
THE FOURTEENTH AMENDMENT
ionate to its disfranchisement of adult male citizens, without expressing
the manner of achieving that result. The bill, to be enforceable, would
require further congressional legislation. The effect of the proposal was,
therefore, to leave Congress in the same situation as it was in the absence of a statute.
A further criticism of the bill was in its divergence from the language
of section 2. According to the mandate of the fourteenth amendment,
once the number of disfranchised male citizens is found and divided
into the total number of adult male citizens in the state, the resulting
fraction is to be subtracted from the state's basis of representation
which is set at the number of persons in the state, excluding Indians not
taxed."' But the language of section 6 as proposed by the Senate Judiciary
Committee applied the fraction of disfranchised citizens to the number
of representatives apportioned to the state. Thus instead of using the
fraction of disfranchised citizens in each state to establish the apportionment of Representatives among the states, the congressional bill would
apply to a state's number of Representatives after an apportionment
among the states was completed. The congressional bill would have
the advantage of allowing Congress to act to reduce a state's allotment
of Representatives in any session of Congress, not just after an enumeration by the census. But what would happen to the membership in the
House if one state's allotment of Representatives was decreased? If the
size of the House was to remain the same, then how was Congress to
determine the manner in which the Representatives which one state lost
were to be distributed to the other states? Since this question was never
discussed in the congressional debate on the bill, it is quite possible that
Congress was not aware of any divergence between the language of the
bill and that of the fourteenth amendment.
Despite the criticisms mentioned, the proposed section was swept
through Congress in whirlwind fashion with a minimum of debate. Senator Trumbull of Illinois, in introducing section 6, merely stated:
The object of that is to carry out the fourteenth amendment of the Constitution,
and in case any of the States of the Union should, after the paEsage of this act,
deny to any of their male citizens specified in the Constitution the right to vote
otherwise than for the cause there assigned, the Congress will tahe occa-ion to
reduce their representation in the manner provided for in the Constitution of the
United States.113
When section 6 of the bill was read to the Senate on January 29, 1872,
a vote was immediately requested. Senator Sherman asked that the second section of the fourteenth amendment be read to the Senate. 14 Ap112.
113.
114.
See Appendix, p. 136 infra.
Cong. Globe, 42d Cong., 2d Sess. 610 (1371-1372).
Id. at 678.
FORDHAM LAW REVIEW
[Vol. 30
parently, Sherman sensed a discrepancy in the language of the bill. But
the Senate had at that point passed the time deadline it had set for the
vote on the Apportionment Act, and Senators cried out for a cessation
of debate. Senator Sherman therefore withdrew his request for a reading
of the amendment, and without any debate on the measure, the Senate
by a twenty-eight to twenty-five vote accepted the section. 115
On the following day, the House accepted section 6, as an amendment
to the Apportionment Act, also without debate. 110 The only reference
to the section was made by Representative Farnsworth of Illinois, who
in describing its effect, significantly said it "can do no harm.""' It was
only after the bill had passed both houses of Congress that the mistake
of citing section 1 of the fourteenth amendment, rather than section 2
in the bill, was discovered, and a separate bill had to be passed to rectify
the error."" On February 2, 1872, the sixth section as part of the Act
for the Apportionment of Representatives to Congress according to the
Ninth Census was enrolled." 9
The second session of the Forty-second Congress was thus responsible
for producing a census report listing the number of disfranchised citizens
among the states, and a statute authorizing the future enforcement of
section 2 of the fourteenth amendment. But the census report had
proven inaccurate and insignificant and Congress had chosen to ignore
its results in providing for the basis of apportionment. The trivial nature
of the returns probably produced its mark in history, as no Congress
since that date has seen fit to request a similar census report on the
number of disfranchised citizens among the states. As to section 6 of
the statute passed by Congress to regulate apportionment, little can be
said except that as an unenforceable measure it served only to remind
the country that section 2 of the fourteenth amendment was not a "dead
letter" and might be implemented if a future session of Congress was
inclined to do so.
The Apportionment Act of 1901 and ProposedBills
The next serious consideration in Congress of section 2 as a means
of reducing the congressional representation of states whose citizens were
disfranchised, came at the turn of the century. In the meantime, notable
changes in the political complexion of the states had occurred. With
the termination of Reconstruction and the withdrawal of federal troops,
115. Ibid.
116. Id. at 713.
117. Ibid.
118. Id. at 703-04, 707, 777.
119. 17 Stat. 29 (1872). Section 6 of the act is now found in Rev. Stat. § 22 (1875),
2 U.S.C. § 6 (1958). It has never been enforced.
1961]
THE FOURTEENTH AMENDMENT
the Republicans had lost their foothold in the South. Federal protection
of the right of Negroes to cast their ballot in Southern elections had
disappeared and Negro voters became a rarity below the Mason-Dixon
line. In addition to "grandfather laws," primary restrictions, literacy
tests, and poll taxes, Negroes also faced individual violence and threats
of violence to keep them away from the polls. The last quarter of the
nineteenth century saw the Democratic Party firmly entrenched as the
dominant party of the South. The memory of Reconstruction and the
disfranchisement of Negro citizens in the South had destroyed the Republican Party's aspirations for success in that region. But the Republican
hope of curtailing the political power of the South had not died.
On January 4, 1901, as Congress undertook to reapportion the House
following the completion of the Twelfth Census, Representative William
B. Shattuc, a Republican from Ohio, introduced the following resolution:
Resolved ... That the Director of the Census is hereby directed to furnih this
House, at the earliest possible moment, the following information:
First. The total number of male citizens of the United States over 21 years of
age in each of the several States of the Union.
Second. The total number of male citizens of the United States over 21 years of
age who, by reason of State constitutional limitations or State legilation, are
denied the right of suffrage, whether such denial eists on account of illiteracy,
on account of pauperism, on account of polygamy, or on account of property qualifications, or for any other reason.o
The Shattuc resolution further authorized the Speaker of the House
of Representatives to appoint a select committee of five members from
the Census Committee to investigate the question of the alleged abridgment of the elective franchise for any of the causes mentioned, in states
where constitutional or legislative restrictions were claimed to exist. The
select committee was to file a report declaring its findings to the Census
Committee which was then directed to return a bill to the House of Representatives providing for the apportionment of Representatives based on
the language of the fourteenth amendment.
Marlin E. Olmstead of Pennsylvania, a Republican, spoke in favor of
the Shattuc resolution. Olmstead declared that
it is the plain intention of the Constitution that where there is a large wholesale
restriction in the right of suffrage those people who are permitted to vote shall
not have the force and influence of their votes augmented by permitting thcm to
elect more members of Congress and more Presidential electors than the same
number of people in any other State .... '22
He cited the case of Iississippi whose constitution excluded from suffrage those unable to read or interpret its constitution, part of which was
120. 34 Cong. Rec. 556 (1900-1901).
121. Id. at 557.
FORDHAM LAW REVIEW
[Vol, 30
written in Latin. If Mississippi used its constitution to deny suffrage, then
why, asked Olmstead, should not the mandate of section 2 of the four122
teenth amendment be applied.
The Shattuc resolution was referred to the Census Committee of the
House, but the apportionment bill reported by that committee ignored
the question of disfranchised citizens in determining the basis of representation. Representative Edgar Crumpacker of Indiana moved to recommit the apportionment bill back to the committee with instructions
to ascertain whether any of the states had denied or abridged the right
of adult male citizens to vote in any of the elections mentioned in section
2, and if so, to take such restrictions in account when determining the
basis of apportionment.
In defense of his motion, Crumpacker gave his interpretation of section
2 and provided one of the few well considered statements on the meaning
of its provisions. He emphasized that a denial of the right to vote must
be distinguished from a limitation of its exercise in the interest of fair
and orderly elections. Where a state imposed a property qualification on
the right of its citizens to vote, or required a voter to be able to read
Greek, that would obviously be a ground for the reduction of their basis
of representation. But that was not to be confused with the use of the
Australian system of voting, the official ballot, or registration laws designed to protect the purity of the ballot. In Crumpacker's words,
Restrictions upon the exercise of the elective franchise, reasonably necessary for
the integrity of elections, are not denials or abridgments of the right itself within
the meaning of the law. The people, in adopting the fourteenth amendment, intended it to have a practical operation, and it must be construed in conformity
with the custom and necessity for holding elections under reasonable safe123
guard ....
Crumpacker also believed that the exclusion from suffrage of idiots,
the insane, and persons under guardianship were not denials of the right
to vote within the language of section 2, as the act of voting involves the
exercise of the will and that class of persons are presumed to have no
will in the sense of the law. "They are disfranchised
by their own want
24
of power to perform the act of suffrage."'
There were 94 Representatives who supported Crumpacker's motion,
but 136 voted against it, causing another effort at enforcing section 2 to
culminate in defeat.'2
However, the Republicans were not yet ready to write off section 2
as a possible political weapon in reducing Southern representation. At
122.
123.
124.
125.
Id. at 748.
34 Cong. Rec. app. 69 (1900-1901).
Ibid.
34 Cong. Rec. 748 (1900-1901).
1961]
THE FOURTEENTH AMENDMENT
the national party convention in 1904, the Republicans included a plank
in their national platform, declaring:
We favor such Congressional action as shall determine w:hether, by special dis-
criminations the elective franchise in any State has been unconstitutionally limited,
and if such be the case, we demand that representation in Congreas and in the
Electoral College shall be proportionately reduced, as directed by the Constitution
of the United States.'2-
On December 7, 1904, Thomas C. Platt, Senator from New York and
a member of the National Republican Committee, introduced a bill to
amend the Apportionment Act of 1901.127 The preamble of the bill declared that:
Whereas the Congress is satisfied that the right of male inhabitants of certain
states being t ent,-one years of age and citizens of the United States, to vote at
some of said elections since the passage of the act hereby amended has in fact
been denied or abridged for causes not permitted by the Constitution of the United
States, and that the representation of the States hereinafter specified should b2
reduced pursuant to the Constitution.... s
The bill went on to provide that after March 3, 1907, and until otherwise enacted, the representation in the House of Representatives from
Alabama would be reduced from nine to seven; in Arkansas from seven
to six; in Florida from three to two; in Georgia from eleven to eight; in
Louisiana from seven to five; in MKississippi from eight to six; in North
Carolina from ten to eight; in South Carolina from seven to five; in
Tennessee from ten to nine; in Texas from sixteen to fifteen; and in
Virginia from ten to eight Representatives, causing the total representation in the House to be reduced from 386 to 367 members. Senator Platt
did not describe the nature of the information that was utilized in determining the reduction in Representatives, except to say that the bill was
prepared by the Committee on National Affairs"-' of the Republican Club
of New York City. The bill was referred to the Committee on the Census
where it died.
One further effort to apply the mandate of section 2 to the Apportionment Act of 1901 came in a bill introduced on February 26, 1906 by
Representative Warren J. Keifer of Ohio.'-- The effect of the Keifer
bill was to reduce the number of Southern Representatives by thirtyseven. This loss was equal to the number of Representatives based on the
Negro population of the South whom Keifer claimed were totally dis126. U.S. House of Representatives, The Platform of the Two Great Political Parties
1865-1928, 137 (1928).
127. 31 Stat. 733 (1901).
128. S. 5747, 58th Cong., 3d Sess. (1904-1905).
129. 39 Cong. Rec. 47 (1904-1905).
130. H.R. 15647, 59th Cong., 1st Sess. (1905-1906).
FORDHAM LAW REVIEW
[Vol. 30
franchised by the use of fraudulent ballots, shotgun policies, dishonest
registration policies, and intimidation at the polls. 131 The interesting
point to note in Keifer's attack is his emphasis on the effects of individual
acts of intimidation and fraudulent election practices. 13 2 Prior to this time,
section 2 had been viewed in the light of the effect of state constitutional
and legislative actions. Here in the wake of the post-Reconstruction era,
we find an appeal to Congress to use section 2 to combat the disfranchisement of Negro voters whether the exclusion from suffrage be caused by
state law or individual action. In the view of Keifer a denial or abridgment of the right to vote occurs within the meaning of section 2 whenever a citizen is disfranchised by the terms of a state's constitution or
law, by the actions of election officials and other officers of the state who
control the election machinery, and by individual acts of intimidation
of would-be voters where such actions are met with popular acquiescence
throughout the state. The number of Congressmen who supported this
view is impossible to ascertain as the Keifer bill was referred to the
Census Committee, the graveyard of measures attempting to enforce
the provisions of section 2, and was never reported to the House.
The McNamara Bill
The most recent attempt in Congress to implement the second section
of the fourteenth amendment occurred in the first session of the Eightyfifth Congress. On July 24, 1957, during the debate on the bill,1""
which eventually was enacted as the Civil Rights Act of 195 7,134 Senator
Pat McNamara, a liberal Democrat from Michigan, offered an amendment. "' Believing that an implementation of section 2 of the fourteenth amendment should be an integral part of any bill designed to
protect the right to vote, the McNamara amendment offered the following plan. A Joint Committee on Congressional Representation was to be
established composed of nine members of the House of Representatives
appointed by the Speaker, and nine Senators appointed by the President
of the Senate. No more than five Senators or Representatives were to be
members of the same political party. 3 ' By May 1 of the year following
a biennial election for Representatives in Congress, the joint committee
was to:
(1)
determine whether any State has, in violation of section 2 of the fourteenth
131. 40 Cong. Rec. 3885-86 (1905-1906).
132. Id. at 3889-90.
133. H.R. 6127, 85th Cong., 1st Sess. (1957).
134. 71 Stat. 634, as amended, 5 U.S.C. § 295-1 (1958), 28 U.S.C. §§ 1343, 1861 (1958),
42 U.S.C. §§ 1971, 1975, 1975a-e, 1995 (1958) (Supp. II, 1959-1960).
135. See 103 Cong. Rec. 12519 (1957).
136. S. 2709, 85th Cong., 1st Sess. § 2 (1957).
19611
THE FOURTEENTH AMENDMENT
amendment to the Constitution, denied or abridged the right of inhabitants of such
State to vote in any election prescribed in such section since the preceding biennial
election for Representatives in Congress; and
(2) calculate, in the manner prescribed in section 2 of the fourteenth amend-
ment to the Constitution and in section 22 of the Revised Statutes, the number (if
any) by vwhich the Representatives in Congress of each state wvhich the joint committee determines has so denied or abridged the right of its inhabitants to vote
137
shall be reduced as the result of such denial or abridgement.
The statement of the joint committee as to the number, if any, of
Representatives to be reduced from each state for the Congress commencing after the date of such statement was to be reported to Congress
by May 1 with a full and complete report of the facts upon which such
statement is based.' The findings of the joint committee concerning the
reduction of representation would go into effect thirty days after the
submission to Congress of the statement, unless before that time Congress
passed a concurrent resolution expressly disapproving the findings of the
joint committee. 1o
The McNamara amendment to the Civil Rights Act enlisted support
from both political parties. Senator Clark, a Democrat from Pennsylvania, hailed the measures as "an effort which has been delayed for
perhaps some 90 years, and is certainly long overdue."""0 However, the
amendment failed to win the approval of Senator Johnson of Texas, the
majority leader, and while minority leader Knowland of California considered the bill to be worthy of consideration as a separate piece of
legislation, he thought its status as an amendment to the Civil Rights
Act was inadvisable.14' By a voice vote, the McNamara amendment was
rejected." The provisions of the amendment were introduced by Senator
McNamara as a separate legislative bill on August 6, 1957.113 On February 17, 1959, Senator McNamara reintroduced his bill cited as the
"Congressional Representation Act of 1959.1'n" The bill was referred
to the Committee on the Judiciary for future consideration and died
there.
Senator McNamara deserves credit for his effort to revive congres137.
13S.
S. 2709, 85th Cong., 1st Sess. § 3(a) (1957).
S. 2709, 35th Cong., 1st Sess. § 3(b) (1957).
139. S. 2709, 85th Cong., 1st Sess. § 4 (1957).
140. 103 Cong. Rec. 13464 (1957). Other Democratic Scnators announcing their -up.
port for the amendment were Paul Douglas of Illinois, and Wayne 1MorZ2 and Rdchard
Neuberger of Oregon, while Republicans Clifford Cae of New Jer-ey, Jacob Javits of
New York, and Charles Potter of Mlichigan declared they would vote in favor of the
measure. Id. at 13463-65.
141. Id. at 13465.
142. Ibid.
143.
S. 2709, S5th Cong., 1st Sess. (1957); see 103 Cong. Rec. 13703 (1957).
144. S. 1084, s6th cong., 1st Sess. (1959).
FORDHAM LAW REVIEW
[Vol. 30
sional interest in the full provisions of section 2 of the fourteenth amendment. It is difficult to disagree with the Michigan Senator's statement
that "we cannot be selective about enforcing our constitutional rights
and duties. If we are to accept any of the constitutional provisions, we
must accept all of them."'I4 But in examining the McNamara bill as an
attempt to implement section 2 it appeared to have several defects.
First, a discrepancy can be found between the wording in the bill
and the language of the fourteenth amendment. The bill called on the
joint committee to determine whether any state had denied or abridged
the "right of inhabitants of such state to vote in any election" prescribed
in section 2 and to reduce representation accordingly. 14 0 The fourteenth
amendment limits the effect of disfranchisement to "the male inhabitants
of such State, being twenty-one years of age, and citizens of the United
States." If the McNamara bill had been enacted and was construed to
include the effect of the disfranchisement of females and non-citizens in
determining the basis of representation, would such a measure have been
constitutional?
In considering the effect of the disfranchisement of female citizens,
we must remember that at the time the fourteenth amendment was
drafted (1866), no state permitted females to vote at general elections.
Thus the limitation of the effect of disfranchisement upon representation
to adult male citizens cannot be said to recognize a conscious choice on
the part of Congress and the states to exclude the effect of female disfranchisement. If women could not vote in any of the states, it would
have been foolish to ascertain how many of their number were disfranchised. But now by the language of the nineteenth amendment, ratified in
1920, "the right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account of
sex." There has been no judicial declaration concerning the effect of the
nineteenth amendment on section 2 of the fourteenth amendment, but
the Supreme Court of the United States did say, by way of dictum, in
Breedlove v. Suttles, 147 that the nineteenth amendment "applies to men
and women alike and by its own force supercedes inconsistent measures,
whether Federal or state." To be consistent with the mandate of the
nineteenth amendment, there is justice in the argument that in calculating
the basis of representation, the disfranchisement of female as well as
male citizens should be considered.
However, to reduce a state's representation by including non-citizens
in the ranks of the disfranchised would offend the language of section 2.
145.
146.
147.
103 Cong. Rec. 13463 (1957).
S. 2709, 85th Cong., 1st Sess. § 3(a) (1957).
302 U.S. 277, 283 (1937).
1961]
THE FOURTEENTH AMENDMENT
The limitation of the effect of disfranchisement to citizens was not inserted in section 2 by accident. As we have seen, it was chosen at the
insistence of New England States who demanded the right to disfranchise
their alien population with impunity. The justification of ignoring the
effect of the alien's exclusion from suffrage may be questioned, but it
is a feature of the amendment that must be acknowledged.
A further criticism of the McNamara bill can be raised as to its
method of determining whether a state has denied or abridged the right
of inhabitants to vote. The bill assigned this task to a joint congressional
committee which has four months to produce findings and a statement
as to the possible reduction in the number of a state's Representatives to
Congress. Senator McNamara construed the word "denial" in section 2
to mean "any effort [by a state] to deprive voters of their franchise.1l4 S
Certainly such a view was justified in view of the legislative history of
the amendment. But this means that a congressional committee entrusted
with a duty affecting the composition of the national legislature would
have had to consider voting restrictions in all the states, such as poll
tax requirements in Mississippi,"' a literacy requirement as in Massachusetts, 15 or an exclusion of paupers as in Maine.""
Section 7112 of the McNamara bill authorized the committee to hold
hearings and investigations with powers of subpoena over witnesses and
documents, and section 101 3 provided for a staff of counsel and technicians. But even with such assistance, it is doubtful whether a committee could determine the number of disfranchised citizens in one state,
let alone fifty states within four months. The use of census takers to
enumerate disfranchised citizens was not provided for in the bill, and
since the committee was directed to act every two years, the use of a
decennial operation like the census would not have solved the problem.
In addition to the barriers imposed by time and space, if a congressional committee were responsible for ascertaining the number of disfranchised citizens, the political pressures operating on its members
might seriously impair their effectiveness. The possibility of deals, and
the "you stay out of my state and I'll stay out of yours" attitude cannot
be discounted where congressional committees are concerned. Thus, while
the ultimate decision of reducing congressional representation must be
left to Congress, the wisdom of placing the initial task of ascertaining
the existence and number of disfranchised citizens with a congressional
committee is open to doubt.
148.
149.
150.
151.
152.
153.
Letter From Senator McNamara to Author, March 2, 1959.
MiLs. Const. art. XII, § 241.
Mass. Gen. Laws Ann. ch. 51, § I (Supp. 19 0).
Mlaine Const. art. II, § 1.
S. 2709, 85th Cong., 1st Sess. § 7 (1957).
S. 2709, 8Sth Cong., Ist Sees. § 10 (1957).
[Vol. 30
FORDHAM LAW REVIEW
Despite these difficulties, the McNamara bill may still be defended as
an attempt to induce the states to enlarge the enfranchisement of their
citizens. Although a congressional committee might be limited in its
effectiveness to fully comply with the mandate of section 2, the very
existence of such a committee would be a sword threatening to cut into
the representation of states which continue to disfranchise their citizens.
Apparently, this was the object of the bill, as Senator McNamara stated
that "whether or not enough violations could ever be found to reduce a
State's representation by even one, the existence of the joint committee
and its responsibility to conduct a biennial investigation would have a
tremendous impact on those states which deny citizens the right to
, 1 54
vote. 2
III.
THE PRESENT STATUS OF SECTION 2
There never has been a successful implementation of the full provisions
of section 2 of the fourteenth amendment. No state has ever suffered a
reduction in congressional representation through its disfranchisement of
adult male citizens. Yet it is common knowledge that from the date of
the ratification of the fourteenth amendment to the present day, there
have been denials and abridgments of the right of citizens to vote, particularly in the case of the Negro population in the South.'
In thirteen counties in Mississippi of more than 50 per cent Negro
population, only fourteen Negro votes were cast in the 1954 congressional
elections, while in nine rural counties in Alabama with a large Negro
population, not a single Negro was registered to vote in the same elecLetter From Senator McNamara to Author, March 2. 1959; see note 2 supra.
155. In a study showing the extent of disfranchisement, the Southern Regional Council,
in 1957, offered the following statistics showing the number of Negrobs of voting ago
and the number of Negroes eligible to vote under existing conditions in Southern States.
154.
Negroes of
Voting Age
Estimated Negro
Voters
Ala.
516,245
53,336
Ark.
232,191
67,851
Fla.
Ga.
La.
Miss.
366,797
633,690
510,090
497,350
148,703
163,380
161,410
18,000
N.C.
549,740
102,000
S.C.
Tenn.
Tex.
309,000
371,480
550,992
98,890
148,592
209,297
Va.
422,670
84,931
The statistics compiled by the Southern Regional Council were based on census reports and
a study of eligible Negro voters under existing state registration laws and practices. Newsweek, July 15, 1957, pp. 24-25.
1961]
THE FOURTEENTH AMENDMENT
tions.a 6 The examples need not be multiplied to prove that disfranchisement is still very much with us in this country.
Admitting that a problem of disfranchisement exists, it may still be
asked whether enforcement of section 2 would be of aid in encouraging
the extension of suffrage. Accordingly, we might first take note of an
argument which has sometimes been advanced, that the reduction of
representation provision of section 2 was nullified by the enactment of
the fifteenth amendment. Such a proposition was advanced by Emmet
O'Neal, a distinguished Southern lawyer and United States Attorney for
the Northern District of Alabama, in his attack against the 1904 Republican platform which had advocated the enforcement of section 2.t :
O'Neal argued that section 2 did not vest in Congress the power to reduce the representation of a state which had regulated the suffrage in
any manner it saw proper, provided the regulations were uniform and
did not discriminate against individuals on account of race, color, or
previous condition of servitude. Since the effect of the fifteenth amendment was to render any law so discriminating, inoperative and void,
O'Neal concluded that Congress no longer had reason or authority to
reduce a state's representation under section 2. Charles A. Gardiner, in
a convocation address at New York University in 1903, went so far as
to say that the penalizing clause of section 2 was abrogated when the
fifteenth amendment was adopted and that any attempt by Copgress to
reduce representation under that clause would be unconstitutional and
would promptly be set aside by the courts. 15
However, the proposition that the penalizing clause of section 2 is
limited to instances of disfranchisement based on race, color, or previous
condition of servitude cannot be accepted in the light of events leading
to the adoption of the fourteenth amendment. We have seen that an early
proposal of the Reconstruction Committee reducing the representation of
states which denied the elective franchise solely on grounds of race or
color was rejected by Congress."" The argument then raised against
limiting the grounds of exclusion to race or color was that states by high
property qualifications could effectively disfranchise Negroes though not
mentioning race or color in their laws.cO Section 2 as finally drafted was
intended to remedy that defect.'
156. See Southern Negroes and the Vote, Time, July 29, 1957, p. 12.
157. See ONeal, The Power of Congress to Reduce R(prcnntation in the Houe of
Representatives and in the Electoral College, 131 No. Am. Rev. 530 (1905).
153. Gardiner, Solution of the Negro Problem, p. 210 (11103)
vocation Address).
159. Cong. Globe, 39th Cong., lst Sess. 12S9 (1S6S-I'6).
160. Id. at 376, 385.
161. See notes 59-61 supra and accompanying text.
(New York Univ. Con-
FORDHAM LAW REVIEW
[Vol. 30
Nor does the history after the passage of the fifteenth amendment
support the view that the effect of that amendment was to abrogate the
penalizing clause of section 2. In the Second Session of the Forty-first
Congress, after the passage of the fifteenth amendment, the House Census Committee under James A. Garfield had compiled a list of state laws
which operated to disfranchise citizens in preparation for guiding the
census takers in the determination of the basis of representation under
section 2.102 That list included laws which in addition to race and color,
denied the vote on account of residence, property tests, literacy qualifications, character tests, poverty, and insanity. Moreover, Section 6 of the Apportionment Act of 1872, saw Congress specifically authorize a reduction
in the number of representatives where a state denied the right of citizens
to vote except for participation in rebellion or other crime."'U Thus we
have a statutory enactment based on section 2 of the fourteenth amendment after the date of the ratification of the fifteenth amendment. The
words of Representative Samuel Shellabarger of Ohio in describing section 2 at the session which enacted this statute are particularly worth
noting:
The design of this constitutional amendment [article XIV, section 2] was that
the poor man, the ignorant man, the colored man, should be secured, should be
guarrantied [sic] his right to vote; that the States should not deprive him of his right
of representation, except by taking the consequences of not having in this Hall
representAtion for those of his class. That is to say, if a State decides that a man
is not good enough to vote, the State shall thereby be regarded as saying that he
64
is not good enough to be represented here.'
Though it was the hope of the framers of the fourteenth amendment
that the threat of a loss in representation would primarily encourage the
extension of suffrage to the Negroes, the legislative history of section 2
clearly proves that it was intended to operate whenever a state, in its
control of the elective franchise, decided that certain of its citizens were
unfit to vote.
A further question which may be raised as to the application of section 2 is whether states may suffer a loss in congressional representation
when citizens are denied the right to vote through the actions of private
individuals. In the Fifty-ninth Congress, Representative Keifer, in his
effort to enforce section 2, argued that any device used to disfranchise
citizens, whether by state law, electoral fraud, or by the intimidation of
would-be voters by private parties within the state, should operate to
reduce such state's congressional representation.0 5 The Constitution,
162.
163.
164.
165.
See notes 84, 85 supra.
Rev. Stat. § 22 (1875), 2 U.S.C. § 6 (1958).
Cong. Globe, 42d Cong., 2d Sess. 81 (1871-1872).
40 Cong. Rec. 388-90 (1905-1906). See notes 130-32 and accompanying test.
1961]
THE FOURTEENTH AMENDMEAT
as viewed by Keifer, was only interested in the fact of the denial of a
citizen's right to vote, not in the manner in which such right was invaded.
The language of section 1 of the fourteenth amendment specifically
declares that "No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due
process of law.
" leaving no doubt that it is only state action which
is condemned. However, the language of the penalizing clause of section
2 contained no express provision limiting its effect to state action. It
merely states:
But when the right to vote at any election . . . is dcnied to any of the male
inhabitants of such State, being twenty-one years of age, and citizens of the United
States, or in any way abridged, except for participation in rebellion, or other crime,
the basis of representation therein shall be reduced ....
A literal reading might thus support the application of section 2 to
individual as well as state action. However, the application of section 2
to individual action would be contrary to the meaning given to that section by the Congress that drafted the fourteenth amendment. We have
seen that Congress clearly acknowledged the right of the states to control
the elective franchise, subject to the principle embodied in section 2that where a state determined that certain of its citizens were not qualified to vote, they should not have them included in determining the
state's representation in the House of Representatives. Political representation in Congress was not to belong to those who had no political
existence. The choice was left with the states: to disfranchise any of
its citizens, or to enjoy full political strength in Congress. But this choice
was necessarily to be reflected in the state's control of its electoral machinery. The Congressional Globe shows evidence that states would be
penalized under section 2 when their use of tests based on race, color,
property, and education disfranchised voters; but nowhere in the debates
of the Congress which enacted the fourteenth amendment is there recognition that states would be penalized through the interference of voting
rights by private individuals.
The activity of the Census Committee in 1870 in attempting to enforce
section 2 is further evidence of its meaning. We have seen that this committee compiled a list of state laws and constitutional provisions which
served to disfranchise citizens in preparation for the apportionment of
Congress. The committee report made no mention of the effect of individual acts which deprive citizens of the right to vote,cG although the
activities of the Ku Klux Klan were well known to Congress by 1370.
166.
See notes 84 & 35 supra.
FORDHAM LAW REVIEW
[Vol. 30
Finally, we have the evidence of the Congressional Apportionment Act
of 1872, Section 6 of which states:
That should any State, after the passage of this act, deny or abridge the right
of any of the male inhabitants of such State, being twenty-one years of age, and
citizens of the United States, to vote at any election named in .. . the Constitution, article fourteen, section two, except for participation in the rebellion or
other crime, the number of Representatives apportioned in this act to such State
shall be reduced in the proportion which the number of such male citizens shall
have to the whole number of male citizens twenty-one years of age in such State. 0 7
Here, in the one congressional statute based on the second section of the
fourteenth amendment, we find Congress specifically limiting the effect
of the amendment to state action.
The conclusion dictated by the legislative history is that if a state is
to lose congressional representation through the denial of a citizen's right
to vote, the cause must be grounded on state action. Whether in the form
of constitutional provisions, legislative statutes, or through the control
of the electoral machinery, the state must be responsible if section 2 is
to apply.
IV.
THE APPLICATION AND ENFORCEMENT OF SECTION 2
With the scope and meaning of section 2 in mind, we might turn our
attention to several areas where the enforcement of its provisions might
prove of benefit in discouraging the denial of voting rights.
A prime target for the application of section 2 would be literacy tests,
which in the South have been employed with great success in preventing
Negroes from voting. As of 1956, there were nineteen states with some
form of literacy requirement for voting. 6 " Some tests merely call for the
ability to read the Constitution and to write one's own name, as in California,16 9 Delaware, 170 Maine,' and Massachusetts. 7" But Alabama requires an applicant to be able to read and write any article of the Constitution in English and to answer questions concerning his qualifications
as an elector. 3 Georgia requires ability to read and write English plus
a demonstration of an understanding of the duties and obligations of
citizenship;' 7 4 while Mississippi requires ability to read and write any
section of the state constitution, plus the ability to give a reasonable in167.
Rev. Stat. § 22 (1875),
2 U.S.C. § 6 (1958).
(Emphasis added.)
168. Note, Use of Literacy Tests to Restrict the Right to Vote, 31 Notre Dame Law.
251, 255 (1956).
169. Cal. Const. art. II, § 1.
170. Del. Code Ann. tit.
15, § 1701 (1953).
171. Me. Rev. Stat. Ann. ch. 3, § 20 (1954).
172. Mass. Gen. Laws Ann. ch. 51, § 1 (Supp. 1960).
173. Ala. Code tit. 17, §§ 31-32 (1953) (Supp. 1959).
174. Ga. Const. art. II, §§ 2-704.
19611
THE FOURTEENTH AMENDMENT
terpretation thereof to the registrar, as well as to demonstrate the duties
and obligations of citizenship.' If states were threatened with a loss of
political strength in Congress because of the effect of their literacy requirements for voters, the result might well be a reduction in such laws
or perhaps a growing acknowledgment of the intelligence of the Negro
population of the South.
Another form of voting restriction which would be vulnerable to attack by enforcement of section 2 is the poll tax requirement. In 1958,
9
Alabama," ' Arkansas,71' Mississippi,1'7 Texas, 3 and Virginia' imposed
a poll tax as a prerequisite to the right to vote. Such a requirement has
long operated to keep lower income groups away from the polls. The
exclusion from suffrage of paupers, as in Maine'8 1 and New Hampshire,'would also be within the scope of section 2.
In applying section 2, the difference between laws designed to secure
the orderly administration of elections and the purity of the ballot on
the one hand, and laws and regulations calculated to repress suffrage on
the other, must continually be kept in mind. It is only the latter regulation of the elective franchise-where the state has consciously decided
through its laws or agents, that a group of citizens are unfit to exercise
the right to vote-that the penalty of section 2 should be applied. If
votes are impaired because of violation of registration laws and regulations imposed to secure honest and correct results, the force of section 2
should properly be withheld.
There is also merit in the argument that the exclusion from suffrage
of idiots and the insane, who are presumed to have no will in the sense
of the law, is not a disfranchisement within the meaning of section 2,
for they are disfranchised by their own want of power to perform the
act of suffrage.' 83 But it would be advisable to require a judgment of
incompetency from a court of record before ignoring the effect of the
disfranchisement of such citizens.
The question of whether to exclude the effect of residence requirements for voting from the force of section 2 presents a more difficult
problem. Every state has a requirement ranging from six months to two
175.
176.
177.
178.
179.
MNiss. Const. art. XII, § 244.
Ala. Const. art. VIII,§ 17S.
Ark. Const. art. 111, § 1, amend. S.
Mis. Const. art. -XII, § 241.
Te:. Const. art. VI, § 2.
180.
Va. Const. art. II, § 21.
131. Mle. Coast. art. II, § 1.
132. N.H. Const. art. 23.
133. See 34 Cong. Rec. app. 67, 69 (1900-1901) (address of Rcp. Edgar Crumpacher of
Indiana).
FORDHAM LAW REVIEW
[Vol. 3 0
years residence as a qualification for voting. 184 The use of residence requirements might be defended as a device for promoting honest elections
by preventing the migration of would-be voters to areas where close
electoral contests are expected, shortly before the holding of thb election. However, a residency requirement for voting is also a decision on
the part of a state that citizens who lack the prerequisite tenure of
residence are unfit to vote. The Garfield Census Committee thus included residency laws as being within the language of section 2 operating
to reduce a state's congressional representation.18 8 To the extent that
residence qualifications are common to all states, it might be said that
their inclusion in section 2 would make little difference in the apportionment of Congress, as the loss in the basis of each state's representation
would be roughly the same. But in any event, Congress in enforcing
section 2 would not be prevented from enacting a statute declaring which
state laws and actions would produce a reduction in a state's basis of
representation. Literacy tests, poll tax requirements, and property qualifications would certainly be included within such list. Whether residency
requirements would be considered a denial of the right to vote would
be for Congress to decide. The production of such a statute clarifying
and defining the terms of section 2 would not be an insurmountable task
for Congress to perform. The far greater difficulty comes in selecting a
method which will determine the number of citizens in each state who
are denied the right to vote.
The problem of ascertaining the number of disfranchised citizens has
beset Congress since the adoption of the fourteenth amendment, and has
been a basic cause of the failure of Congress to enforce section 2. Obviously, the enumeration of disfranchised citizens cannot be left for the
courts to decide. A judicial type hearing to determine the question of
whether a single citizen was denied the right to vote would be costly and
time-consuming. If the courts were to pass on all the claims of disfranchisement within a state, the task would necessarily be an impossible
one for the courts to handle within the period between congressional
elections.
However, even if the courts were equipped to handle the problems presented by section 2, judicial decisions have indicated that the courts
would refrain from determining questions which relate to apportionment
by considering such questions to be political in nature. In Saunders v.
Wilkins,'186 it was held that questions relating to the apportionment of
184. See, e.g., Cal. Const. art. II, § 1; Mass. Gen. Laws Ann. ch. 51, § 1 (Supp. 1960);
N.Y. Election Law § 150.
185. See notes 84 & 85 supra.
186.
152 F.2d 235 (4th Cir.), cert. denied, 328 U.S. 870 (1945).
1961]
THE FOURTEENTH AMENTDMIEN1T
representatives among the several states are political by nature and reside exclusively within the determination of Congress. The court declared that though
it is well known that the elective franchise has been limited or denied to citizens
in various States of the union in past years . . . it is notevworthy that there are
no instances in which the courts
have attempted to revize the apportionment of
1 s7
Representatives by Congress.
Thus if section 2 of the fourteenth amendment is to be enforced, Congress must be counted on to perform this function.
A Szggestion ForInplementing Section 2
How, then, is Congress to implement the provisions of section 2? By
now it must be clear that there is no easy answer to this problem. But
the legislative history of the amendment does suggest one method for
enforcing section 2-the employment of the United States Census Bureau
for enumerating the number of disfranchised citizens in each state.
Though the Congress which drafted section 2 of the fourteenth amendment gave scant attention to the details of enforcing its provisions, we
do find recognition in the addresses of Senators Wade of Ohio,1 Doolittie of Wisconsin,'13 and Howard of Alichigan,"' that the task of determining the number of citizens in each state who were deprived of the
right to vote would be entrusted to the census takers. We have also seen
that in the first serious effort made by Congress to enforce section 2,
the House Census Committee, in the Forty-first Congress, prepared a
list of state laws which operated to disfranchise citizens, to be presented
to the assistant marshals conducting the Ninth Census to guide them in
enumerating the disfranchised of each state. 10 However, the plan of the
187. 152 F.2d at 237-38. For a truly imaginative attempt to utilize tection 2 of the
fourteenth amendment see Dennis v. United States, 171 F.2d 926 (D.C. Cir. 194S), aii'd, 339
US. 162 (1950). In appealing a conviction for villful default in failing to answer a subpoena of the House Un-American Activities Committee, Dennis contended that the committee
which had issued the subpoena was not a validly constituted committee of Co"_ cn: as it
was not composed exclusively of members of Congrecs. He chargeiI that Rcprcentative
John E. Rankin of Mississippi, a member of the committee, was not a Congrccsman but an
"interloper" because due to the election laws and practices of MiLEiszippi, section 2 of the
fourteenth amendment prevented Mississippi from having more than four of its allotted
seven Representatives. Therefore, Dennis claimed, all Reprezentatives from MiscIippi were
"interlopers" and all congressional committees on which they erved were incapable of
exercising congresional powers. After dismissing this contention as "sheer nonsenze," Judge
Clark went on to state that only Congress could enforce the provisions of section 2. 171 F.2d
at 993.
188.
189.
190.
191.
Cong. Globe, 39th Cong., 1st Sess. 276S-69 (1265-1.66).
Id. at 2942.
Id. at 3038-39.
H.R. Rep. No. 3, 41st Cong., 2d Sess. (1869-1870).
FORDHAM LAW REVIEW
[Vol. 30
Census Committee was shelved by Congress, and the actual enumeration
of disfranchised male citizens by the census takers in 1870 proceeded
hastily, without congressional sanction or instructions. As a result, the
rather trivial and probably unreliable figures that were obtained in the
ensuing census report cannot be treated as an illustrative example of the
type of report that the Census Bureau could produce today under modern
means of investigation and with proper congressional instructions.
Even after the disappointing census report of 1870, subsequent attempts by Congressmen to implement the penalizing clause of section 2,
as in legislative bills offered by Representatives John M. Bright of Tennessee, 19 2 and William Shattuc of Ohio, 1 93 have continued to recognize
the need for utilizing the services of census takers in ascertaining the
number of citizens excluded from the ballot in the several states. The
reason for depending on census takers arises from the fact that the
Census Bureau is the only national agency that is capable of undertaking
a state-by-state investigation to determine our representative as well as
aggregate population within the time remaining between the execution of
the census and the holding of the next congressional election. Neither the
courts, with their abstention from determining political questions, nor
a congressional committee, with the barriers imposed by time and space,
can handle the task of enumerating disfranchised citizens. If the function is to be delegated to an independent agency, the logical choice is the
Census Bureau with its nationwide machinery for gathering information
from the public.
The employment of the Census Bureau in the enforcement of section
2 could proceed along the following lines. First, a list would have to be
compiled by the census takers showing the number of male citizens (or
more likely, all citizens if the language of the nineteenth amendment is
read into section 2 of the fourteenth amendment) twenty-one years of
age or more, in each state. Actually, this presents no problem as such
information is accumulated by the Census Bureau in the population
94
schedules.
In conforming to the mandate of section 2, the census taker, after discovering his subject is a United States citizen of twenty-one years of
age or more, would be required to ask him whether he had attempted to
vote in an election for the choice of Presidential electors, for Representatives to Congress, for executive and judicial officers of a state, or for
members of the state legislature, and had been denied the right to cast
his vote at any one or all of the above elections. Presumably, the elec192.
Cong. Globe, 42d Cong., 2d Sess. 140 (1871-1872).
193. 34 Cong. Rec. 556 (1900-1901). See notes 120-22 supra and accompanying text.
194. See, e.g., 1950 Census of Population, vol. 2 pt. I, app. 1-461 (1952-1953),
for an illustrative example of the population schedule used by the Census Bureau.
1961]
THE FOURTEENTH AMENDMENT
tions mentioned would refer to the last one held for such offices prior
to the date of the census. If the subject declared that his right to vote
had been denied, at one of the named elections, he would then be asked to
state, to the best of his knowledge, the reason or ground upon which the
denial was based and the election in which it occurred. The statements
would be recorded by the interviewing census official. With the completion of the census, all statements made by citizens claiming a denial of
the right to vote at one of the prescribed elections would then be accumulated for each state.
If these statements were accorded finality, the method described might
be subject to the criticism that the citizens would thus be made judges
of the law as well as the facts upon which section 2 was to operate. This
criticism might be overcome by providing for the submission of the statements of disfranchised citizens to the select committee appointed decennially by Congress to apportion Congress in the light of the census
reports. This congressional committee on apportionment would be authorized to review the reasons upon which denials of the right to vote
were based and to determine whether they came within the language of
section 2. As stated earlier, a separate statute defining which state actions were denials or abridgments of the right to vote within the meaning
of section 2 would serve as a guide to aid the committee. The committee
might also find it advisable to request the appearance of electoral officials of the various states to explain their electoral practices.
After studying the claims of disfranchisement and determining which
of the claims stated causes that were denials or abridgements of the
right to vote, the congressional committee would be directed to reduce
each state's basis of representation'
(the total number of persons in
the state) by the proportion which the number of such disfranchised
citizens bore to the whole number of citizens in the state twenty-one.
years of age. The resulting sum would then constitute the political representation of each state and would be the figure relied upon in determining the apportionment of representatives.
The congressional committee would have the final word in deciding
whether the facts, as stated by individual citizens, brought them within
the category of disfranchised citizens as required by section 2. But, to,
make the plan work, the facts as reported to the census officials would
have to be taken at face value. Otherwise, if each citizen would be re195. The exclusion of "Indians not taxed" from the basis of rpresentation is no long r
a factor to be considered as all Indians are now subject to federal income tan lawz. See
Superintendent v. Commissioner, 295 U.S. 41S (1935). In 1940 the Director of the Cesrua
included all Indians in the tabulation of the total population of each state. The incluzion,
of Indians was accepted by Congress. See S7 Cong. Rce. 70 (19,41).
FORDHAM LAW REVIEW
(Vol. 30
quired to prove his allegation of disfranchisement, the amount of time and
expense involved would make the enforcement of section 2 impossible.
However, the reliance on individual assertions of exclusion from suffrage in the statements made to census officials would not present a
strong danger of falsity or inaccuracy in the reports. Individual assertions to census officials cannot be offered with impunity. Federal statutes
provide for fines and imprisonment for anyone over eighteen years of
age, who when requested by officers of the Census Bureau to answer any
question to the best of his knowledge, refuses or wilfully neglects to
answer, 196 or wilfully gives any answer that is false, 1 7 or directly or
indirectly offers or renders any suggestion, advice, information or assistance of any kind, with the intent or purpose of causing an inaccurate
report.'9 8 Secondly, it is unlikely that citizens would be inclined to give
information that might reduce their state's political strength in Congress,
unless the grievance of being deprived by the state of their right to vote
left a strong impact on their minds. Indeed, if any danger exists, it is
that the number of statements collected by census officials from disfranchised citizens will be smaller than the actual number deprived of
the right to vote, as the Census Report of 1870 would indicate. But it
must be remembered that the object of section 2 should not be to reduce
the congressional representation of various states as an end in itself, but
to encourage the extension of suffrage to all citizens. Regardless of the
number of citizens who claim a deprivation of the right to vote, the very
existence of a nationwide investigation as suggested here might prove of
value in encouraging states to lower their restrictions on the right to vote.
It will be seen that the plan as outlined above, with its reliance on the
services of census takers, contemplates an implementation of section 2 of
the fourteenth amendment only once every ten years-at the taking of
the national census. However, this is suggested by the language of section 2 which directs that the proportion of disfranchised adult male
citizens in each state shall be subtracted from the state's basis of representation, which is determined only once every ten years. Furthermore,
if any state is to lose Representatives as a result of the disfranchisement
of its citizens, the problem of how to allot the number of Representatives
removed from that state to the other states, would best be resolved at
the time of the apportionment of the entire House of Representatives at
the completion of each decennial census.
The plan that has been suggested to enforce section 2 is not presented
197.
13 U.S.C. § 221 (a) (1958).
13 U.S.C. § 221 (b) (1958).
198.
13 U.S.C. § 222 (1958).
196.
1961]
THE FOURTEENTH AMENDMENT
as an infallible device. It is merely offered as an attempt to implement
the complex mandate of the section in an orderly manner.
It should be noted that in his study of congressional apportionment, Lawrence Schmeckebier, after contemplating the difficulties involved in the enforcement of section 2 concluded that the section should
be repealed and a more workable plan substituted for it. He recommended
a constitutional amendment basing apportionment on the votes cast in
each state at the presidential election preceding the apportionment of
Congress every ten years.'-1 This plan would prevent reliance on the
truth of information given to census takers and would reduce a state's
representation where a large proportion of its people were deprived of
suffrage by individual threats and intimidation as well as by legal means.
It would also directly encourage those entitled to vote to come to the
polls to prevent a decrease in their state's representation. However, such
a plan to become effective must not only meet congressional approval,
but must be ratified by three-fourths of the states-a prospect which
under present conditions is even more unlikely than the inminent enforcement of section 2. Indeed, if section 2 has any value today, it lies
in the fact that its opportunity for enforcement rests with the will of a
majority of Congressmen, rather than upon the consent of the states.
V.
CONCLUSION
In looking to the future, one may hope that Congress will awaken to
the need of giving life to the full provisions of section 2 as a means of
encouraging the extension of suffrage to all citizens. But it must be conceded that the framers of the fourteenth amendment did not make the
task of implementing the provisions of the section an easy one to perform.
The arduous task of placing the long and difficult language of the section
into a workable statutory plan has baffled congressional minds for nine
decades. But perhaps the history of section 2 can be of value to future
Congresses, if not as a guide to legislation, then at least as a lesson to,
be learned of the danger that is inherent in efforts to amend the Constitution when political expediency and compromise are allowed to take
precedence over the need for careful draftsmanship and attention to>
the problems of future enforcement.
199. Schmeckebier, Congressional Apportionment 96-97 (1941).
136
FORDHAM LAW REVIEW
[Vol. 30
APPENDIX
States
Ala.
Ark.
Cal.
Conn.
Del.
Fla.
Ga.
InI.
Ind.
Iowa
Kan.
Ky.
La.
Me.
Md.
Mass.
Mich.
Minn.
Miss.
Mo.
Neb.
Nev.
N.H.
N.J.
N.Y.
N.C.
Ohio
Ore.
Pa.
R.I.
S.C.
Tenn.
Tex.
Vt.
Va.
W.Va
Wis.
Total
U.S.
Male Citizens 21 years
and upward whose right
to vote is denied or
abridged on grounds
other than rebellion
or other crime
Representative
Populationt
Aggregate
Population
Male Citizens
of the U.S.
21 years of
age and
upward
996,992
484,471
560,247
537,454
125,015
187,748
1,184,109
2,539,891
1,680,637
1,191,792
364,399
1,321,011
726,915
626,915
780,894
1,457,351
1,184,059
439,706
827,922
1,721,295
122,993
42,491
318,300
906,096
4,382,759
1,071,361
2,665,260
90,923
3,521,791
217,353
705,606
1,258,520
818,579
330,551
1,225,163
442,014
1,054,670
202,182
102,359
145,802
127,499
28,207
38,871
234,971
542,833
377,938
255,471
99,929
284,096
159,007
153,160
169,845
312,770
274,459
75,274
169,551
381,129
35,009
18,652
83,361
194,109
984,255
214,142
593,950
24,608
776,627
43,996
146,979
258,093
166,343
74,867
266,437
93,847
204,177
690
198
243
1,249
284
41
1,064
609
566
283
1,223
873
185
840
533
3,719
1,318
117
342
9,265
115
16
689
535
469
674
2,551
123
2,345
2,835
516
733
2,766
107
981
982
301
993,589
483,533
559,313
$32,189
123,756
187,549
1,178,747
2,537,041
1,678,120
1,190,471
359,939
1,316,951
726,069
623,476
778,443
1,440,022
1,178,372
439,022
826,252
1,679,451
122,588
42,454
315,669
903,598
4,380,670
1,067,988
2,653,812
90,468
3,511,157
203,347
703,128
1,254,945
804,967
330,078
1,220,652
437,388
1,053,115
38,113,253
8,314,805
40,380
37,928,329
t The sums listed under "Representative Population" were presented by Representative
Garfield, Chairman of the House Census Committee, who in relying on the figures presented by the Secretary of the Interior, subtracted from the figures listed in column (1),
the figure derived by applying the sum shown in column (3) over the sum in column (2)
to the figure in column (1) for each state. The figures are set out in Cong. Globe, 42d
Cong., 2d Sess. 83 (1871-1872).